Indiana’s Abortion Method Ban Stands but Could Face New Fight

Indiana can enforce a ban for now on the most common method for abortions after the 15th week of pregnancy, but an abortion provider might be able to use a new legal theory to strike it down.

The US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization undoubtedly prevented Caitlin Bernard from prevailing on her claim that Indiana’s ban on “dismemberment” abortions unduly burdens a right to abortion under the 14th Amendment’s due process clause, the US District Court for the Southern District of Indiana said. The court granted the state judgment on the pleadings.

But Bernard may be able to state a new claim alleging that the dilation and evacuation abortion ban violates a person’s 14th Amendment substantive due process right to bodily integrity, at least as it applies to nonelective abortions, Judge Sarah Evans Barker said in a March 31 opinion. Barker gave Bernard 30 days to file an amended complaint alleging facts supporting that claim. Barker previously blocked the law pending trial.

• The law targets D&E abortions, which is the most common and considered to be the safest method for abortions during the second trimester
• An exception to preserve the health and life of the patient may be enough to shut down a challenge based on the right to bodily integrity, which the Supreme Court has recognized outside the abortion context
• But it’s unclear if the health-and-life exception applies to all medical emergencies for which an abortion may be required, or if the law’s requirement that one of three methods for ensuring the fetus’ death before surgery still applies in an emergency situation and places an unconstitutional condition on a nonelective abortion, the court said

Wilmer Cutler Pickering Hale & Dorr LLP, the American Civil Liberties Union Foundation, and the ACLU of Indiana represents Bernard. The Indiana Attorney General’s Office and Schaerr Jaffe LLP represent the state.

The case is Bernard v. Individual Members of Indiana Med. Licensing Bd., 2023 BL 108668, S.D. Ind., No. 1:19-cv-1660, 3/31/23.